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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ADVO, Inc.
(Exact name of issuer as specified in its charter)
Delaware 06-0885252
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
One Univac Lane, P.O. Box 755, Windsor, Connecticut 06095-0755
(Address of Principal Executive Offices)
1986 Employee Restricted Stock Plan of ADVO, Inc., as amended
(Full title of the plan)
David M. Stigler
Senior Vice President, General Counsel and Secretary
One Univac Lane, P.O. Box 755, Windsor, Connecticut 06095-0755
(Name and address of agent for service)
(860) 285-6120
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities of Amount to be Proposed maximum Proposed maximum Amount
to be registered registered offering price per share (*) aggregate offering price (*) registration fee
- ---------------------- ------------ ---------------------------- ---------------------------- ----------------
Common Stock, par 100,000 shares $27.344 $2,734,375 $806.64
value $.01 per share
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(*) Estimated pursuant to Rule 457(h) solely for the purpose of computing the
registration fee on the basis of the average of the high and low prices of the
Common Stock of ADVO, Inc. on April 9, 1998.
Pursuant to Rule 429, this registration statement constitutes
Post-Effective Amendment No. 5 to the Company's Form S-8 (File No. 33-19045)
registering 1,250,000 shares for issue under the 1986 Employee Restricted Stock
Plan (the "Plan"), as amended and Post-Effective Amendment No. 1 to the
Company's Form S-8 (File No. 33-27370) registering 375,000 shares for issue
under the Plan, as amended and Post-Effective Amendment No. 2 to the Company's
Form S-8 (File No. 33-34686) registering 312,500 shares for issue under the
Plan, as amended and Post-Effective Amendment No. 3 to the Company's Form S-8
(File No. 33-40402) registering 500,000 shares for issue under the Plan, as
amended and Post-Effective Amendment No. 4 to the Company's Form S-8 (File No.
333-24131) registering 30,000 shares for issue under the Plan, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. - INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by ADVO, Inc. (the "Company" or the
"registrant") with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 27, 1997, filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 27, 1997 ;
(c) Current Report on Form 8-K dated September 29, 1997; and
(d) The description of the Company's Common Stock which is contained in its
registration statement on Form 10 filed under the 1934 Act, and any
amendment or report filed under the 1934 Act for the purpose of updating
such description.
All documents subsequently filed by the Company and the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(c) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement to be a
part hereof from the date of the filing of such reports and documents.
ITEM 4. - DESCRIPTION OF SECURITIES
This Item is not applicable to the securities to be registered hereby.
ITEM 5. - INTERESTS OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements and schedule of ADVO, Inc.
incorporated by reference or appearing in ADVO, Inc.'s Annual Report (Form 10-K)
for the year ended September 27, 1997, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon incorporated by
reference or included therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm as
experts in accounting and auditing.
The validity of the ADVO, Inc. Common Stock being offered hereby is
being passed upon for the Company by David M. Stigler, Senior Vice President,
General Counsel and Secretary of the Company. Mr. Stigler is also a shareholder
of the Company, holds options to purchase additional shares of the Company's
Common Stock and participates in the Company's stock plans, including the 1986
Employee Restricted Stock Plan of ADVO, Inc., as amended.
ITEM 6. - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), directors and officers as well as other employees and
individuals may be indemnified against expenses (including attorneys' fees),
judgment, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings,
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whether civil, criminal, administrative or investigative (other than an action
by or in the right of a corporation--a "derivative action") if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with defense or settlement of such an action and the DGCL
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. Additionally,
a corporation is required to indemnify its directors and officers against
expenses to the extent that such directors or officers have been successful on
the merits or otherwise in any action, suit or proceeding or in defense of any
claim, issue or matter therein.
Unless ordered by a court, an indemnification can be made by a
corporation only upon a determination that indemnification is proper in the
circumstances because the party seeking indemnification has met the applicable
standard of conduct as set forth in Delaware Law. The indemnification provided
by Section 145 of the DGCL includes the right to be paid by the corporation the
expenses incurred in defending proceedings in advance of their final
disposition. Such advance payment of expenses, however, may be made only upon
delivery to the corporation by the indemnified party of an undertaking to repay
all amounts so advanced if it shall ultimately be determined that the person
receiving such payments is not entitled to be indemnified.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred by Section
145 of the DGCL is not exclusive of any other right which any person may have or
acquire under any statute, provision of the certificate of incorporation or
bylaws, or otherwise. In addition, Section 145 of the DGCL authorizes a
corporation to maintain insurance, at its expense, liability or loss, whether or
not the corporation would have the power to indemnify such person against such
expense, liability or loss under the DGCL.
As permitted by Section 145 of the DGCL, the Restated Certificate of
Incorporation and the Restated Bylaws of the Company provide for indemnification
of officers, directors, employees and agents of the Company in certain cases
against expenses and liabilities under judgments of reimbursement of amounts
paid in settlement.
ITEM 7. - EXEMPTION FROM REGISTRATION CLAIMED
This item is not applicable to the securities to be registered hereby.
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ITEM 8. - EXHIBITS
The following exhibits are filed herewith:
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Exhibit No. Description
- ----------- -----------
4(a) 1986 Employee Restricted Stock Plan of ADVO, Incorporated by reference to the
Inc., as amended. Company's Definitive Proxy Statement for
the annual meeting of Stockholders held
on January 22, 1998.
4(b) Restated Certificate of Incorporation of ADVO, Incorporated by reference to Exhibit 3(a)
Inc. to the Company's Form 10 filed on
September 15, 1986 (No. 1-11720).
4(c) Restated Bylaws of ADVO, Inc, Incorporated by reference to Exhibit 3(b)
to the Company's Annual Report on Form
10-K for the fiscal year ended September
30, 1989.
4(d) Stockholder Protection Agreement, dated as Incorporated by reference to Exhibit 4.1
February 5, 1993, between the Company and of the Company's Form 8-K dated February 5,
Mellon Securities Trust Company, as Rights 1993.
Agent, including Exhibit A and Exhibit B.
5 Opinion of Counsel. Filed herewith.
23(a) Consent of Independent Auditors. Filed herewith.
23(b) Consent of Counsel (See Exhibit 5). Filed herewith.
24 Power of Attorney (See Signature Page). Filed herewith.
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Item 9. - UNDERTAKINGS
A. Undertaking to Update
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. Undertaking With Respect to Incorporating Certain Exchange Act
Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and each filing of the Plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Undertaking With Respect to Indemnification of Directors, Officers
or Controlling Persons.
Insofar as indemnification for liabilities under the Securities Act of
1933 ("the Act") may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Windsor, State of Connecticut, on April 13, 1998.
ADVO, Inc.
By Robert S. Hirst /s/
--------------------
ROBERT S. HIRST
Vice President and Controller
Power of Attorney
-----------------
Each of the undersigned hereby appoints David M. Stigler and Robert S.
Hirst, and each of them severally, his true and lawful attorneys to execute on
behalf of the undersigned any and all amendments to this registration statement
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission. Each such
attorney will have the power to act hereunder with or without the other. Each of
the undersigned hereby ratifies and confirms all that attorneys, or any of them,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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ROBERT KAMERSCHEN /s/ Chairman, Chief Executive Officer and April 13, 1998
- -------------------------- Director (Principal Executive Officer)
Robert Kamerschen
GARY M. MULLOY /s/ President, Chief Operating April 13, 1998
- -------------------------- Officer and Director
Gary M. Mulloy
DONALD E. MCCOMBS /s/ Senior Vice President and Chief April 13, 1998
- -------------------------- Financial Officer (Principal Financial Officer)
Donald E. McCombs
ROBERT S. HIRST /s/ Vice President and Controller April 13, 1998
- -------------------------- (Principal Accounting Officer)
Robert S. Hirst
BRUCE CRAWFORD /s/ Director April 13, 1998
- --------------------------
Bruce Crawford
DAVID F. DYER Director April 13, 1998
- --------------------------
David F. Dyer
JACK W. FRITZ Director April 13 , 1998
- --------------------------
Jack W. Fritz
HOWARD H. NEWMAN /s/ Director April 13 , 1998
- --------------------------
Howard H. Newman
JOHN R. ROCKWELL Director April 13 , 1998
- ------------------------------
John R. Rockwell
JOHN L. VOGELSTEIN /s/ Director April 13, 1998
- -------------------------------
John L. Vogelstein
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EXHIBIT INDEX
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Incorporation by
Exhibit No. Description Reference
- ----------- ----------- ----------------
5 Opinion of Counsel Filed herewith
23(a) Consent of Independent Auditors Filed herewith
23(b) Consent of Counsel (See Exhibit 5) Filed herewith
24 Power of Attorney (See Signature Page) Filed herewith
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April 13, 1998 EXHIBIT 5
ADVO, Inc.
One Univac Lane
Windsor, CT 06095-2668
Gentlemen:
I am General Counsel of ADVO, Inc. and have acted as counsel with respect to the
Registration Statement on Form S-8 under the Securities Act of 1993, as amended,
as filed by ADVO, Inc. (the "Company") with the Securities and Exchange
Commission, relating to an additional 100,000 shares of common stock, $.01 par
value, of the Company (the "Shares") to be issued upon grants of restricted
stock under the Company's 1986 Employee Restricted Stock Plan (the "Plan").
I have examined the Plan, the minutes of the corporate proceedings of the Board
of Directors of the Company, the minutes of the Company's most recent Annual
Meeting of Shareholders, and such other documents as I have deemed necessary or
advisable for the purposes of my opinion below.
Based upon the foregoing, I am of the opinion that the Shares to be issued under
the Plan will, when so issued upon receipt of the consideration specified in the
Plan, be validly issued, fully paid and non-assessable (assuming that, at the
time of such issuance, the Company has a sufficient number of authorized and
unissued shares available for such issuance).
I consent to the use of this opinion as Exhibit 5 to the aforesaid Registration
Statement. In giving such consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1993, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
DAVID M. STIGLER \s\
- ----------------------
David M. Stigler
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in the Registration Statement constituting
Post-Effective Amendment No. 5 to Form S-8 (No. 33-19045) pertaining to the 1986
Employee Restricted Stock Plan of ADVO, Inc., as amended, Post-Effective
Amendment No. 1 to Form S-8 (No. 33-27370), Post-Effective Amendment No. 2 to
Form S-8 (No. 33-34686), Post-Effective Amendment No. 3 to Form S-8 (No.
33-40402) and Post-Effective Amendment No. 4 to Form S-8 (No. 333-24131) and to
the incorporation by reference therein of our reports dated October 21, 1997 and
December 12, 1997, with respect to the consolidated financial statements and
schedule of ADVO, Inc. incorporated by reference or included in its Annual
Report (Form 10-K) for the year ended September 27, 1997, filed with the
Securities and Exchange Commission.
Ernst & Young LLP /s/
Hartford, Connecticut
April 8, 1998
